Why “As of Right Zoning” is Critical for New York City’s Continued Growth

Land Use

A few years ago in a real estate and land use practice bulletin, we compared and contrasted area variances under New York State law with area (or bulk) variances under New York City law. We explained that the threshold to obtain a bulk variance in New York City is much higher and significantly more burdensome than the threshold to obtain an area variance under state law, and that, generally, bulk variances in New York City are treated similar to use variances in villages, towns and cities throughout the rest of the state. As extremely difficult as it is to obtain a use variance outside of New York City, it is likewise difficult to obtain a bulk variance in New York City. We noted that it is not surprising that the New York City Board of Standards and Appeals, the city’s zoning board, sees a relatively small number of new bulk variance cases each month, considering it has jurisdiction over all five boroughs.

However, while area variances may be more cumbersome in New York City, New York City has something that villages, towns and cities throughout the rest of the state rarely have – “as-of-right” zoning. What may come as a shock to land use attorneys practicing outside of New York City is that the large majority of development throughout New York City is completed “as-of-right.” In other words, if a developer wants to build a shopping center with a large accessory parking lot in Queens or a 50-story office tower in Manhattan, and the respective development complies with the New York City Zoning Resolution and the New York City Building Code, the developer will receive a building permit from the Department of Buildings and may commence construction. No discretionary review is required. This is in contrast to the rest of the state, where villages and towns will typically require discretionary site plan review by a local planning board for large projects, and, in many instances, small projects as well.

General City Law, Section 27–a; Town Law, Section 274–a; and Village Law, Section 7–725–a grant cities, towns and villages the authority to conduct site plan review. Under site plan review, the municipality can review the design, arrangement and uses of the land to be improved, and analyze the project’s physical, social and economic effects on the community. While site plan review may not be reserved for all uses of land within a municipality under such municipality’s land use controls, site plan review can be required for both small– and large–scale projects such as gas stations, drive–through facilities, office buildings, shopping centers, apartment developments and planned unit developments. General site plan review is focused on means of access, parking, landscaping, buffers, architectural features, pedestrian safety, location of structures, impact on adjacent land uses and other elements related to the health, safety and general welfare of the community.

New York City does not have site plan review. If a project complies fully with the Zoning Resolution and the Building Code, and no discretionary approval is necessary, such as a variance, special permit, or landmarks approval, the only review occurs at the building permit phase. There is no municipal board with discretionary authority determining whether the site layout is appropriate, whether landscaping is sufficient or whether there is an impact on adjacent land uses. All controls are imbedded in the Zoning Resolution and the Building Code, and, once compliance therewith is established, the city must issue the building permit. This system adds both flexibility and accelerated development, and is critical in maintaining the level of growth and modernization necessary for New York City to be a thriving economic center.

It is not surprising that site plan review is more appropriate outside of New York City. First, substantial variations in topography, lack of a consistent street grid, and sewer location make it more difficult to have a single set of rules apply within a single zoning district. In a village on Long Island, it is possible that, within a single zoning district, the topography, street layout, utilities and the location and access to homes could vary substantially, making a case-by-case site plan review more appropriate. This is typically not the case in the city, where each block is laid out similar to the next. Second, case-by-case site plan review is more practical when you have a limited number of development projects and less detailed zoning regulations in place. Given the number of development projects in the city at a given time, development in the city would come to a screeching halt if development projects were required to go through site plan review. Because site plan review is not practical in the city, all requirements must be imbedded in the Zoning Resolution, including those requirements typically reserved for site plan review outside of the city. It is no surprise that the Zoning Resolution is thousands of pages long.

Posted by Daniel Braff

The Ins and Outs of Public Parking Garages in the Manhattan Core

Land Use

All of us take for granted the availability of garage parking in Manhattan. Yet, the New York City Zoning Resolution regulates public parking garages under a very complex set of provisions. In commercial and manufacturing zoning districts, public parking garages are permitted as-of-right or by special permit, depending on the specific district and the size of the garage. However, within the Manhattan Core, which is defined as Manhattan south of 96th Street on the East Side and south of 110th Street on the West Side, public parking garages are governed by a separate set of regulations.

The Manhattan Core parking regulations, originally established in 1982, were enacted in response to the Federal Clean Air Act to discourage vehicular trips to and from the Manhattan Core. Among other things, these regulations removed the minimum required number of parking spaces for accessory garages serving a particular development, placed a cap on the number of parking spaces permitted for accessory garages, and required that all public parking garages of any size and in any district within the Core obtain a special permit from the City Planning Commission. This special permit, which still exists today for some public parking garages outside of the Manhattan Core, focuses more on the impact of the parking facility on the surrounding area, including the effects on traffic safety and congestion.

In 2013, the Manhattan Core parking regulations were amended to, among other things, eliminate the distinction between public and accessory parking garages within the Manhattan Core, and to establish a new special permit. Under these amendments, new accessory parking garages up to a certain maximum number of spaces and existing accessory garages of any size that operate under a Department of Consumer Affairs (DCA) license (existing prior to January 1, 2012) are permitted to operate as public parking garages. This change allowed a significant number of older accessory garages that had been operating illegally as public parking garages to become legal, subject to the rights of tenants to take back spaces. Moreover, the parking spaces in new accessory garages could be utilized by the public, reflecting the need for all parking facilities, public and accessory, to serve the local neighborhood.

Furthermore, the 2013 amendments included a new special permit for all public parking garages (and accessory parking garages where the number of accessory parking spaces exceed the maximum permitted) in the Manhattan Core. Unlike the prior special permit for public parking garages in the Manhattan Core, the findings required under the new special permit focus on whether the number of spaces proposed is appropriate. In other words, applicants must establish the need for the parking spaces in the surrounding community. As a result, special permits for public parking garages in the Manhattan Core are more difficult to obtain than special permits for public parking garages outside of the Manhattan Core, where a showing of need is not required. There have only been a handful of applications under this new special permit. Most have been granted on the basis of the need to meet residential growth in the neighborhood. In granting these special permits, City Planning found that the number of proposed parking spaces is reasonable and not excessive in relation to recent trends in proximity to the proposed parking facility with regard to the increase in the number of dwelling units and the number of off-street parking spaces. The applicants in these cases analyzed residential developments and current and future parking facilities in the one-third-mile radius of the project over a period of several years to support this finding.

Posted by Daniel Braff

North Brooklyn Industry and Innovation Plan

Land Use

Manufacturing uses have faded in many areas of New York City, typically as a result of rezoning or as a result of a failure of manufacturing uses to compete with other more-profitable uses of land, such as hotels.  For example, some large sites that might otherwise have been developed for light manufacturing uses, or possibly creative or innovative tech uses, have been snatched up by hotel developers for new large hotels.  Changes in land values have encouraged hotel use over manufacturing use and have transformed the neighborhood in the process. Read the rest of this entry »

Posted by Daniel Braff

Zoning 100

Land Use

Zoning law turns 100 this year. New York City enacted the first comprehensive zoning ordinance to regulate the use of land in 1916. What’s the agenda for the next 100 years of zoning and land use law?

The broad purpose of zoning laws is to protect and preserve the public health, safety and welfare. From the time of the earliest enactments, comprehensive zoning meant laws to classify and separate different uses. For instance, zoning laws were designed to keep commercial, industrial and business uses in different districts, zones, away from residential uses. The purpose of these districts was to protect residential uses from the negative impacts of commerce and industry. Likewise, zoning laws differentiated within use categories. For instance, zoning laws created different residential districts so that multi-family uses would be situated in different geographic areas from single family uses. Further, single family uses were differentiated and separated by lot size and area. This pattern, known as Euclidean zoning, has served as the foundation for zoning as we know it today.

Yet, we now realize that strictly following the Euclidean zoning pattern is not fully serving current economic, social and community needs. Whether we invoke terms such as “Smart Growth”, “Transit Oriented Development”, “Sustainability”, “Mixed-Use Development” or “Work Force Housing”, the end result is that we need to re-think how we organize our land use patterns and classifications. The strict separation of uses is not necessarily the best planning for 2016 and the next 100 years of zoning. With proper safeguards, having different uses in the same vicinity and, indeed, the same location and zoning districts can actually advance important goals, such as conserving resources, making public transportation more desirable, advancing the use of alternative energy sources, and promoting commerce and economic development.

These goals require new thinking and new laws. We can have discrete communities, and also have a mixture of uses to create vibrant downtown areas, and promote local businesses. We can have shopping malls and neighborhood stores. We can have industrial and service uses in reasonable proximity to one another. We can have large and small lot residential development. But, we need the legal foundation to make it all work. That will be the job of the zoning bar, land use planners, and municipal officials as we think ahead to zoning 200.


Posted by Michael Sahn